Can I File A Medical Malpractice Lawsuit For A Surgical Error?

If you or a loved one has suffered health problems because of a surgical error, it’s important to understand your legal rights. Surgeons who make easily avoidable mistakes during surgical procedures can be held liable for medical malpractice.

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surgical tools on table

The time period between hearing you’ll need surgery and going under the knife can be extremely nerve-wracking. Even though most surgeries are performed perfectly and without any mistakes or complications, sometimes surgeons and other medical professionals make serious errors in the operating room. Although most people who go into surgery are nervous, many take comfort in knowing that they’ll be in the care of a trusted professional. Unfortunately, sometimes this trust is violated when someone in the operating room commits an easily preventable mistake. When this happens, the patient may not realize something went wrong until serious health complications arise.

In the medical community, surgical errors are considered “never events” – meaning that these events should never happen as long as everyone involved in the procedure acts safely and responsibly. When these errors do happen, the patient could suffer temporary injuries, permanent injuries, and even death. Because surgical errors are some of the most preventable medical errors (and have some of the most serious consequences), it’s important to hold the professionals who commit them accountable for the damage they’ve caused. Our Queens medical malpractice lawyers specialize in helping patients in this situation get financial support and justice for the preventable harm they’ve suffered.

What Are The Most Common Operating Room Errors?

According to a malpractice study by Johns Hopkins University School of Medicine, over 4,000 preventable surgical errors occur each year in the United States, resulting in over $1.3 billion in medical malpractice payouts. This figure is likely even higher in reality, as many surgical errors go unreported. Some of the most common surgical errors include:

  • Leaving a foreign object (like a sponge or towel) inside the patient’s body following the operation (occurs about 39 times per week)
  • Performing the wrong surgical procedure (about 20 times per week)
  • Operating on the wrong side or wrong body part (about 20 times per week)

Since this study looks chiefly at errors that resulted in malpractice lawsuits, we can assume that these three errors account for the majority of health complications related to surgical errors. 59% of surgical error victims suffered temporary injuries related to the error, 33% suffered permanent injuries, and 6.6% died because of surgical error complications.

Do I Have Grounds For A Medical Malpractice Lawsuit?surgeon during operation

Not every surgical error requires a medical malpractice lawsuit. In order to have grounds for a claim, the error must have directly caused an injury, illness, or other health condition. Plaintiffs in medical malpractice lawsuits are required to prove each of the following criteria before suing for a surgical error:

  • A doctor-patient relationship existed between you and the surgeon
  • The doctor failed to meet the medical standard of care and made a surgical error
  • This failure directly caused your health complications, injuries, or illness

Proving your doctor-patient relationship may be easy, but the second two criteria are more complicated. We highly advise seeking guidance from an experienced medical malpractice lawyer who has connections with medical professionals. An expert medical witness can review the evidence of your case and medical records and testify on your behalf in court. He or she can define the medical standard of care and explain to the jury how the defendant violated this standard, and how this violation was the cause of your health problems.

What Is The Universal Protocol For Preventing Surgical Errors?

In 2004, the Joint Commission issued requirements for the Universal Protocol for Preventing Wrong Site, Wrong Procedure, Wrong Person SurgeryAll 21,000+ Joint Commission-accredited healthcare facilities in the United States are required to adhere to this protocol for all surgical procedures. There are three steps to the Universal Protocol:

  • Pre-procedure or pre-operative verification – Medical personnel must make sure that all medical documents are available before beginning the procedure, including patient identification with two identifiers (patient name, medical record number, date of birth), history and physical in the medical record, and signed consent in the medical record with the correct procedure verified.
  • Marking the operative/procedure site – The surgery site must be marked and verified for procedures which involve right/left distinction, multiple structures (e.g. fingers, toes, etc.), or multiple levels (e.g. like in a spinal procedure). The site must be marked with a “YES”, which will stay visible after the patient has been prepped and draped.
  • Time Out (final verification) – The surgical team must take a deliberate pause to communicate and confirm the patient, procedure, site, and side. This includes verifying: correct patient identity, correct procedure verified with consent, correct site and side (with required markings), correct patient position, and availability of correct implants and any special equipment or requirements.

Skipping one or more of these steps greatly increases the chance of committing a surgical error. If one of these steps was skipped over, this violation would be a compelling piece of evidence in your medical malpractice claim.

Will I Need A Lawyer to Help Me File A Lawsuit?

Medical malpractice lawsuits are some of the most complicated forms of personal injury lawsuits. In order to secure a settlement or favorable court verdict, you’ll need help from a lawyer who specializes in medical malpractice law, along with medical experts who can testify on your behalf. Our Queens medical malpractice lawyers have been helping victims of medical errors since 1989. We’re prepared to work with medical experts to build a solid case and help you secure a settlement, or if necessary, a victory in the courtroom. Get in touch with us today for a free consultation to find out more about your options after you or a loved one suffered health problems related to a surgical error.